Opinion
NO: 01-43, SECTION: "J"
September 12, 2001
ORDER AND REASONS
The Defendant was indicted on one count of being a felon in possession of a firearm. Defendant filed a Motion to Suppress Evidence (Rec. Doc. 10), a Kel Tec, model P40, .40 caliber semi-automatic pistol, serial number 56576, and any and all of the Defendant's statements as fruit of the poisonous tree. On August 15, 2001, the Court conducted an evidentiary hearing on the Defendant's motion. After considering the evidence, memoranda, and the applicable law, the Court DENIES the Defendant's motion for the reasons set fourth below.
FACTUAL BACKGROUND
On the night of January 30, 2001, the Defendant, Bernard Ferguson, was at his sister's apartment at 2815 Clara Street. At approximately midnight, the U.S. Marshal Fugitive Task Force arrived at the apartment to arrest Charles Dright on an outstanding warrant for probation violations. The officers had received a tip on or about January 17, 2001, that Charles Dright might be at 2815 Clara Street, staying with his girlfriend, the Defendant's sister, Phyllis Terrell. The officers entered Ms. Terrell's apartment and conducted a warrantless search, believing they had Ms. Terrell's consent to do so. Mr. Dright was present in the apartment and arrested. A Kel-Tec, model P40, .40 caliber semi-automatic pistol, which belonged to the Defendant, was retrieved from a desk drawer. Upon conducting a background check on the Defendant and learning that he had a prior felony conviction, the officers arrested the Defendant.
On February 8, 2001, a grand jury indicted the Defendant on one count of being a felon in possession of a firearm. The Defendant filed a Motion to Suppress Evidence. The Government's position is that the Defendant does not have standing to contest the legality of the search of Ms. Terrell's apartment; or, alternatively, that the officers had Ms. Terrell's consent to enter the apartment and that once they were lawfully inside the apartment, the Defendant told them where the gun was and that it belonged to him.
LAW AND ANALYSIS
A. Defendant's Expectation of Privacy
The Supreme Court has explained that in order for a defendant to claim the protection of the Fourth Amendment, he must demonstrate that he has an expectation of privacy in the place searched and that his expectation is one that society is prepared to recognize as reasonable. See Minnesota v. Olson, 495 U.S. 91, 95-96, 110 S.Ct. 1684, 1687-88, 109 L.Ed.2d 85 (1990) (citing Rakas v. Illinois, 439 U.S. 128, 143-144, 99 S.Ct. 421, 430, 58 L. Ed. 2d 387 (1978)). In Olson, the Court concluded that a place does not have to be one's "home" in order for one to have a legitimate and reasonable expectation of privacy there. Id. at 96, 110 S.Ct. at 1688. The Court recognized that a defendant's status as an overnight guest in a third party's residence "is alone enough to show that he had an expectation of privacy in the home that society is prepared to recognize as reasonable." Id. see also Jones v. United States, 362 U.S. 257, 259, 80 S.Ct. 725, 4 L.Ed. 2d 697 (1960) (recognizing that the defendant had a reasonable expectation of privacy from a search of a friend's apartment where he had been given the use of the apartment by the friend, had clothing in the apartment, and had slept there one night)
In Rakas, the Court repudiated its earlier statement in Jones that anyone legitimately on the premises where a search occurs has a sufficient expectation of privacy to challenge the search's legality, finding that statement over-broad. Rakas, 439 U.S. at 143, 99 S.Ct. at 430. However, the holding of Jones — that the search of the defendant's friend's apartment violated the defendant's Fourth Amendment's rights — is still valid. See Minnesota v. Carter, 525 U.S. 83, 87, 119 S.Ct. 469, 472, 142 L. Ed. 2d 373 (1998)
In the present case. Ms. Terrell testified at the evidentiary hearing that the Defendant slept at her apartment in the living room approximately two to four times a week and that he was going to sleep there the night he was arrested. She further testified that the Defendant kept clothes at her home. The Government has offered no evidence rebutting Ms. Terrell's testimony or the Defendant's assertion that he spends nights at his sister's apartment. Rather, the Government maintains that, because the residence searched was not the Defendant's residence, he had no expectation of privacy in anything located within the apartment.
The Court finds that, because the Defendant was often an overnight guest in Ms. Terrell's apartment, was planning on sleeping there the night he was arrested, and kept clothes at the apartment, he had a reasonable expectation of privacy in Ms. Terrell' s residence.
B. Consent
Under the Fourth Amendment to the United States Constitution, a warrantless entry into a home to conduct a search or make an arrest is per se unreasonable absent consent or exigent circumstances. Steagald v. United States, 452. U.S. 204, 211, 101 S.Ct. 1642, 1647, 68 L.Ed.2d 38 (1981). Consent to a warrantless search must be voluntary and may be express or implied. Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93 S.Ct. 2041, 2045, 36 L.Ed.2d 854 (1973); Unites States v. Jaras, 86 F.3d 383, 390-91 (5th Cir. 1996), rehearing en banc denied, 96 F.3d 764 (5th Cir. 1996). In determining whether consent is voluntary, the Court looks to the totality of the circumstances to assess whether the defendant has freely given consent. United States v. Jenkins, 46 F.3d 447, 451 (5th Cir. 1995). The Government "always bears the burden of proof to establish the existence of effective consent." Florida v. Rover, 460 U.S. 491, 497, 103 S.Ct. 1319, 1324, 75 L. Ed. 2d 229 (1983)
Consent to a warrantless search may be implied by the circumstances surrounding the search or by a person's failure to object to the search.See, e.g. United States v. Varona-Algos, 819 F.2d 81, 83 (5th Cir. 1987), overruled on other grounds, United States v. Jaras, 86 F.3d 383 (5th Cir. 1996); Johnson v. Smith County, 834 F.2d 479, 480 (5th Cir. 1987). In Varona-Algos, the Fifth Circuit found that the defendant, a passenger in the vehicle, implicitly consented to the state trooper's search of his luggage, where the defendant heard the driver give the trooper permission to search the vehicle, witnessed the trooper search the driver's luggage, said nothing when the trooper picked up the defendant's bag, did not claim ownership of the bag, did not object when the trooper searched the bag, and was aware of his constitutional rights. Varona-Algos, 819 F.2d at 83. See also Johnson, 834 F.2d
In Jaras, a more recent case involving the question of implied consent, the Fifth Circuit determined that its earlier holding inVarona-Algos was not dispositive of the case pending before it, because (1) it was factually distinguishable; and (2) Varona-Algos was decided prior to the Supreme Court's annunciation of the Fourth Amendment's requirement that the Government show that police conduct in conducting a warrantless search is "objectively reasonable," in Illionois v. Rodriguez, 497 U.S. 177, 12.0 S.Ct. 2793, 111 L.Ed.2d 148 (1990) andFlorida v. Jimeno, 500 U.S. 248, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991).Jaras, 86 F.3d at 390, n. 6.
While the Court recognizes that the holding in Varona-Algos may not be dispositive in the present case either, the Fifth Circuit's discussion in that case still offers some guidance as to what kind of factors and conduct the Court should consider in making its determination of whether consent to a warrantless search can be inferred from the circumstances of this case. at 480 (finding valid implied consent because police knocked on the plaintiff's door, asked if anyone minded if the house was searched for a suspected felon and neither the plaintiff nor his friend said "no" or objected when the police entered the house with guns drawn); United States v. Gordon, 173 F.3d 761, 765-67 (10th Cir. 1999) (holding consent to search locked duffel bag was reasonably inferred by defendant's conduct in removing key from his pocket and giving it to officer in response to the question, "[c]an you open that?"); United States v. Rosi, 27 F.3d 409, 412 (9th Cir. 1994) (finding valid implied consent to enter the defendant's condominium because the defendant provided the agents with a key so they could enter and the defendant could change clothes); United States v. Griffin, 530 F.2d 739 (7th Cir. 1976) (concluding that consent to enter could be inferred where police knocked and asked to be admitted and the co-defendant opened the door and stepped back inside the apartment leaving the door partially open and did not object when the officers entered).
On the other hand, in Jaras, the Fifth Circuit found that consent to a warrantless search of the defendant's luggage could not reasonably be inferred from the facts surrounding the search. Jaras, 86 F.3d at 390. In that case, the officer obtained permission from the vehicle's driver to search the vehicle out of the defendant-passenger's hearing. In the trunk, the officer discovered two suitcases, which the driver claimed belonged to the defendant. The defendant, who had also walked to the rear of the vehicle, said nothing. The officer told the defendant that the driver had given him permission to search the vehicle and asked the defendant what was in the suitcases, to which the defendant replied he did not know. The officer opened the suitcases, discovered a large quantity of marijuana, and arrested the defendant and the driver of the vehicle. Id. at 385-86.
Citing the well-established rule that a defendant's "mere acquiescence to a show of lawful authority is insufficient to establish voluntary consent," Bumber v. North Carolina, 391 U.S. 543, 548-49, 88 S.Ct. 1788, 1792, 20 L.Ed.2d 797 (1968), the Jaras Court concluded that consent to the search could not be inferred from the defendant's silence and failure to object, because the officer did not expressly or implicitly request his consent prior to conducting the search of the suitcases in the first place. Jaras, 86 F.3d at 390. See also United States v. Albrektsen, 151 F.3d 951 (9th Cir. 1998) (finding that defendant's act of moving aside when police officer entered his motel room did not amount to implied consent to search the room in light of evidence that, if he had not moved aside, the officer would have knocked him down); United State v. Shaibu, 920 F.2d 1423 (9th Cir. 1990) (holding no implied consent to enter where the defendant stepped outside of his apartment then turned to walk back in side, leaving the door open, and did not try to stop the officers from following him back inside where officers did not ask permission to enter); United States v. Most, 876 F.2d 191 (D.C. Cir. 1989) (determining that store employees' cooperation did not amount to implied consent to search the defendant's bag where there was no evidence that officers had requested permission to search).
Turning to the facts of the instant case, it is not disputed that the officers did not expressly ask either the Defendant or Ms. Terrell if they had permission to enter the apartment on the night the Defendant was arrested. United States Deputy Marshall Randy Brouillette testified at the evidentiary hearing that when the Defendant opened the door and Ms. Terrell came out of the bedroom and began to approach the apartment's entrance, the officers, while still positioned outside the apartment, informed both of them that they had an arrest warrant for Charles Dright and asked if he was present inside the apartment. Deputy Marshall Brouillette testified that Ms. Terrell responded that Mr. Dright was in the bedroom and pointed in the direction of the bedroom. According to Deputy Marshall Brouillette, the officers then entered the apartment, believing they had Ms. Terrell's permission to do so. The Government's position is that Ms. Terrell's affirmative response, coupled with her action in pointing towards the bedroom, reasonably led the officers to believe they had her implicit consent to enter the apartment without a warrant. To further support its argument, the Government notes that Ms. Terrell at no time objected or attempted to stop the officers from coming inside her apartment. Once legally inside the apartment, the Government asserts that the officers walked directly to the bedroom and arrested Mr. Dright. Thereafter, the officers conducted a security sweep of the apartment and, for the safety of the officers, asked if there were any guns in the home. According to Deputy Marshall Brouillette, the Defendant responded that there was a gun in the desk drawer in the living room and that it belonged to him. The Defendant was arrested for being a felon in the possession of a firearm.
Additionally, the Court notes that at the hearing, Ms. Terrell stated that had the officers expressly asked her if they could enter the apartment she would have given her consent. While, this testimony obviously does not change the necessary inquiry as to whether the officers reasonably believed Ms. Terrell implicitly consented to their entry, it does tend to make more credible the Government's position that it was reasonable to infer consent to enter from Ms. Terrell's actions, attitude, and stance.
When the task force arrived at the apartment, four officers, including Deputy Marshall Brouillette positioned themselves at the front door and three additional officers were at the back entrance to the building. The Government asserts that at some point soon after entering the apartment, the officers at the back of the building radioed the others that they observed bags of heroin being thrown from a window of the apartment. The Government maintains that forty-nine (49) individually wrapped foils of heroin were recovered. Additionally, once the officers inside the apartment received the information that contraband was being discarded out of a window, the Government asserts that exigent circumstances were created which justified the officers' subsequent search of the entire apartment, during which six (6) bags of marijuana were also found.
All three of the apartment's occupants were placed under arrest and booked with possession of heroin and marijuana as well. At the evidentiary hearing, Ms. Terrell testified that all charges had been dropped against her and that she believed the drug charges had been dropped against both Mr. Dright and the Defendant as well.
Ms. Terrell, on the other hand, testified that, after she heard the third knock at the door and what sounded like someone kicking the door from her bedroom, she came out of the bedroom to find the officers with guns drawn already inside her apartment. She asserts she was immediately placed in handcuffs and led outside the apartment along with the Defendant, while the officers looked for Mr. Dright. According to Ms. Terrell, the officers did not ask her if Mr. Dright was in her apartment before entering, nor did they in any form ask her consent to enter the apartment.
After considering the evidence, the Court concludes that the Government's version of the events that transpired on the night the Defendant was arrested is the most credible. Furthermore, the Court finds that Ms. Terrell's conduct reasonably led the officers to believe they had her consent to enter the apartment. Unlike the defendant in Jaras, Ms. Terrell did not remain silent when the officers asked Ms. Terrell if Charles Dright was present in her home and informed her that they had an arrest warrant for him. Nor did Ms. Terrell give an equivocal answer to the officers' questions. Rather, she specifically answered that Mr. Dright was in her bedroom and then pointed in the direction of where the officers would find him. Ms. Terrell's response and action reasonably led the officers to believe that she was indicating that they could come inside to execute the warrant. Additionally, it is not disputed that Ms. Terrell at no time objected or attempted to stop the officers once they were inside her apartment. Under these circumstances, it was reasonable for the officers to believe that Ms. Terrell had not just "merely acquiesced" to their entering her home, but had affirmatively signaled that they had her permission to come inside and locate Mr. Dright.
Once lawfully inside the residence, the officers located Mr. Dright in the bedroom and arrested him. Upon conducting a protective sweep of the apartment and bringing all of the occupants into the living room, the officers were reasonable in inquiring whether any weapons were present in the home and in seizing the weapon belonging to the Defendant upon learning he was a convicted felon. Accordingly, the Kel Tec, model P40, .40 caliber semi-automatic pistol, serial number 56576 and the Defendant's statements are admissible as evidence.
IT IS ORDERED that the defendant's Motion to Suppress Evidence (Rec. Doc. 10) should be and is hereby DENIED.